In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00028-CV
WANDA J. MCBRIDE, Appellant
V.
DR. PAVAN RAO SARIDENA, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 2018-841-B
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
Dr. Pavan Rao Saridena performed an esophagogastroduodenoscopy (EGD) on Wanda J.
McBride to inspect her stomach for polyps. McBride sued Saridena alleging his actions during
the procedure caused a tear in her stomach that had to be repaired through emergency surgery.
After Saridena’s objections to her initial expert report were sustained, McBride filed a second
expert report. The trial court sustained Saridena’s objections to the supplemental report and
dismissed McBride’s petition for failure to file an expert report compliant with Section
74.351(r)(6) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(6).
On appeal, McBride contends that the trial court erred in dismissing her lawsuit because
(1) her expert was qualified to make the expert report, (2) the supplemental report provided
sufficient opinions about the standards of care and its breach, and (3) the supplemental report
provided sufficient opinions on causation. Because we find that the trial court was within its
discretion to find that the expert report failed to sufficiently address causation, we affirm the trial
court’s order.
I. Background
In February 2016, McBride went to Saridena’s office complaining of “epigastric pain[,]
. . . nausea[,]” and constipation. Saridena examined her abdomen and found “epigastric
tenderness.” Among his recommendations was an EGD, a procedure where an endoscope is
inserted into the patient’s mouth and advanced into the stomach and duodenum. Two days later,
Saridena performed an EGD on McBride. During the procedure, McBride’s stomach suffered a
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deep tear, and she was transferred by ambulance to Good Shepherd Hospital in Longview,
Texas. Saridena’s EGD report stated:
DESCRIPTION OF PROCEDURE: After the risks benefits and alternatives of
the procedure were thoroughly explained, informed consent was obtained. The
endoscope was introduced through the mouth and advanced to the second portion
of the duodenum. The instrument was slowly withdrawn as the mucosa was fully
examined.
....
STOMACH: There was atrophic gastritis with evidence of scarring in the lower
stomach likely healed prior ulcer. Botox (8cc) was injected around the pylorus
and dilated pyloric channel with 18mm TTS balloon with small superficial tear in
the pyloric channel. [W]hile with drawing [sic] the scope bleeding noted in the
proximal stomach with evidence of deep spontaneous tear.
....
COMPLICATIONS: There were no complications.
....
RECOMMENDATIONS: Transfer to the hospital for further evaluation of
abdominal pain. Surgical consult as needed.
At the hospital, Dr. Todd Waltrip determined that she had suffered a “perforated hollow viscus
with free intraperitoneal air and peritonitis,” and to repair the tear, he performed an “exploratory
laparotomy, closure of lesser curvature gastric perforation, retrocolic Roux-en-Y
gastrojejunostomy, feeding jejunostomy tube.”
In May 2018, McBride filed her original petition alleging that her injuries were caused by
Saridena’s negligence. McBride tendered an expert report and curriculum vitae (CV) from
gastroenterologist Amit Ahuja, M.D. Saridena filed three objections to the report and a motion
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to dismiss under Section 74.351(a) of the Texas Civil Practice and Remedies Code. After a
hearing, the trial court sustained Saridena’s objections but denied his motion to dismiss.
McBride later tendered a supplemental expert report from Ahuja with an attached CV.
Saridena again filed three objections to the supplemental expert report and a motion to dismiss,
specifically arguing that (1) Ahuja was not qualified to tender an expert report because he
professed a “lack of knowledge of the standard of care applicable to the performance of the
procedure at issue”; (2) Ahuja’s opinions about the standard of care were conclusory,
insufficient, and baseless; and (3) Ahuja’s opinion on causation stemming from any breach of the
standard of care was conclusory and baseless.
McBride’s response to Saridena’s motion included Saridena’s EGD report and a
statement from Ahuja about the number of EGD procedures he had performed in the preceding
three years. The trial court held a hearing in January 2020, and the court issued an order
sustaining Saridena’s objections to the supplemental report and dismissing McBride’s petition,
with prejudice. The trial court’s order did not state which of Saridena’s arguments formed the
basis of the opinion. Despite McBride timely filing a request for and notice of overdue findings
of fact and conclusions of law, none were ever filed. McBride appealed from the trial court’s
order.
II. Standard of Review
“We review a trial court’s decision regarding the adequacy of an expert’s report under the
[Texas Medical Liability] Act for abuse of discretion.” CSL S Longview v. Walling, No. 06-20-
00069-CV, 2021 WL 96867, at *1 (Tex. App.—Texarkana Jan. 12, 2021, no pet.) (mem. op.).
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“In analyzing a report’s sufficiency under this standard, we consider only the information
contained within the four corners of the report.” Abshire v. Christus Health Se. Tex., 563 S.W.3d
219, 223 (Tex. 2018) (per curiam). “In assessing the sufficiency of the report, a court may not
draw inferences.” CSL S Longview, 2021 WL 96867, at *4 n.4.
To reverse the trial court, we must find that the court acted arbitrarily or unreasonably
without reference to guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
52 (Tex. 2002) (per curiam). “A trial court will be deemed to have acted arbitrarily and
unreasonably if the trial court could have reached only one decision, yet reached a different one.”
Marent v. Asah, 486 S.W.3d 680, 684 (Tex. App.—Texarkana 2016, no pet.). That said, “[a]
trial court does not abuse its discretion simply because it may decide a matter within its
discretion differently than an appellate court.” Estate of Birdwell ex rel. Birdwell v. Texarkana
Mem’l Hosp., Inc., 122 S.W.3d 473, 477 (Tex. App.—Texarkana 2003, pet. denied) (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).
III. Applicable Law
As a healthcare liability case, this matter is governed by the Texas Medical Liability Act
(TMLA), codified in Chapter 74 of the Texas Civil Practice and Remedies Code, in which the
Legislature required all healthcare liability claims to be scrutinized by an expert before their
submission to a fact-finder. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam).
Section 74.351(a) provides that the plaintiff “not later than the 120th day after the date each
defendant’s original answer is filed, serve on [each] party or the party’s attorney one or more
expert reports.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The report must provide a fair
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summary of the expert’s opinions as of the date of the report regarding applicable standards of
care, the manner in which the care rendered by the physician or health care provider failed to
meet the standards, and the causal relationship between that failure and the injury, harm, or
damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). If the claimant’s report
is timely filed, but allegedly deficient, the trial court may grant a single, thirty-day extension to
cure that deficiency. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
A trial court must grant a party’s motion to dismiss under Section 74.351 if it appears that
the report does not represent a good-faith effort to comply with subsection (r)(6) or is not
sufficiently specific “to provide a basis for the trial court to conclude that the claims have merit.”
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); see TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). A good-faith effort also requires that the report
discuss the standard of care and breach of that standard with sufficient specificity to inform each
defendant of the conduct the plaintiff has questioned and to provide a basis for the trial court to
conclude that the claims have merit. Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006)
(per curiam). Here, the report must provide notice of what conduct forms the basis of McBride’s
complaints and provide a basis for the trial court to conclude that McBride’s complaints have
merit. See Longino, 183 S.W.3d at 917.
The trial court did not specify which of Saridena’s three objections its order was based
on. As a result, to prevail on appeal, McBride must show that the trial court abused its discretion
on all three grounds. Because it is dispositive of this appeal, we address only the sufficiency of
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the report’s claims related to causation. See Mooring v. Britton, No. 07-20-00253-CV, 2021 WL
537205, at *2 (Tex. App.—Amarillo Feb. 12, 2021, pet. filed) (mem. op.).
IV. Dr. Ahuja’s Report
In her third point of error, McBride contends that the trial court erred in granting
Saridena’s objections and dismissing her suit because the supplemental report provided sufficient
opinions that Saridena’s breaches of the standard of care proximately caused McBride’s injuries.
A “report can be informal in that the information in the report does not have to meet the
same requirements as the evidence offered in a summary-judgment proceeding or at trial.”
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (quoting Palacios, 46 S.W.3d at
879). Still, “[a] report that merely states an expert’s conclusions about the standard of care,
breach, and causation does not meet the statutory requirements.” McKellar v. Cervantes, 367
S.W.3d 478, 483 (Tex. App.—Texarkana 2012, no pet.); see Wright, 79 S.W.3d at 52. “[T]he
expert must explain the basis of his statements to link [the expert’s] conclusions to the facts.”
Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). Moreover,
the issue of “[w]hether a defendant breached his or her duty to a patient cannot be determined
absent specific information about what the defendant should have done differently.” Palacios,
46 S.W.3d at 880.
In his supplemental report, Ahuja stated a standard of care and four ways that he believed
Saridena breached that standard:
First, it is clear from the office visit dated February 16, 2016[,] that there was no
discussion of the potential use of Botox nor the possibility of performing a
dilation maneuver during the EGD procedure. Botox therapy is not typically
performed on routine EGD exams and is reserved for particular conditions . . . .
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....
. . . . Therefore, I believe that in this particular case, Dr. Pavan Saridena’s
documented discussion with the patient specifically lacking any mention of Botox
prior to the EGD exam fell below standard of care. Likewise, if there is any
potential for a dilation maneuver during EGD exam, this discussion should be had
with the patient prior to the EGD exam.
....
Second, there seems to be an inadequate diagnostic plan based on the medical
records reviewed from the office visit on February 16, 2016. There is no mention
of the potential for a biliary (gallbladder) problem which typically would be
addressed by ordering an ultrasound of the abdomen and a HIDA scan with CCK
injection. . . . I also believe that it would have been prudent to first check labs and
a routine CT of the abdomen/pelvis in this patient to rule out GI obstruction prior
to proceeding with an EGD. Again, I think a CTA exam [such as the one
performed in this case] is appropriate but not until other more common problems
have been ruled out. Due to the aforementioned missing items, a lack of a
comprehensive diagnostic plan, and an omittance of discussion of the potential
use of Botox and a dilation maneuver during endoscopy, it is my opinion that
Dr. Pavan Saridena failed to meet the standard of care in terms of the interview of
the patient and documentation and discussion of a diagnostic and therapeutic plan.
Third, it is clear that during the EGD procedure performed on 2/18/16, there is
lack of description of the pylorus area of the stomach . . . . which was the target of
therapy with Botox and balloon dilation. . . . No reason for the dual therapy that
was administered was documented. . . . [T]here was no description of how long
the balloon dilation was held for [and at what pressure, even though] . . . it is
standard of care to [do so]. . . . Several unanswered questions remain regarding
the “deep spontaneous tear” including the dimensions and exact location of this
tear, whether the bleeding was a slight ooze or was it a brisk bleed, and was it
obvious at the time that there was a perforation or not. My overall impression of
the endoscopic report is that there is a lack of detail of findings and I believe it to
be a substandard that does not meet the standard of care.
Fourth, the EGD procedure lasted 10 minutes[,] . . . and it is apparent that the
patient woke up from anesthesia with significant abdominal pain not be [sic]
expected after an EGD procedure despite performing dilation and Botox injection.
. . . [O]ne certainly does not expect a perforation to occur after an EGD exam.
Although any adverse event is possible, I certainly would not expect a perforation
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in this particular case given the available description of what transpired during the
EGD exam. I can only say that the pre-procedure probability of an adverse event
occurring seems at high [sic] than average risk given the patient’s long list of
comorbidities, a fact that likely should have been documented during the initial
patient interview on February 16, 2016.
Based on those four breaches of the standard of care, the report concluded, “It is my opinion that
the Botox and dilation maneuver caused the perforation sustained by Wanda J. McBride. There
is no clear documentation of why these interventions were being performed. Therefore, it is my
opinion that the Botox and dilation therapy should never have been performed.”
In short, the report alleged that Saridena breached the standard of care by (1) failing to
discuss and/or document the possible use of Botox and dilation; (2) failing to create a diagnostic
plan by ruling out more common problems; (3) failing to describe the affected area of the
stomach, the reason for using both Botox and dilation, and the post-EGD bleeding; and
(4) failing to document McBride’s higher-than-average risk of suffering an adverse event. Based
on those breaches, Ahuja concluded that Saridena’s use of both Botox and dilation caused the
perforation in McBride’s stomach. Yet, even assuming, without finding, that the report properly
stated an adequate standard of care, the report fails to articulate how the use of both Botox and
dilation or any of the four listed breaches of the standard of care proximately caused McBride’s
injuries. See Wright, 79 S.W.3d at 52.
Ahuja also concludes that “there is no clear documentation of why these interventions
were being performed.” Even so, Ahuja fails to explain how the lack of clear documentation led
to the perforation, or any other injuries suffered by McBride. Nor does the report explain how
clear documentation would have prevented the ultimate injury. See, e.g., Abshire, 563 S.W.3d at
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225–26 (report held sufficient where expert opined that failure to properly document patient’s
osteogenesis imperfecta (brittle bone disease) and back pain led to delay in diagnosis and proper
treatment, which led to patient’s paraplegia).
Ahuja also states, “[I]t is my opinion that the Botox and dilation therapy should never
have been performed.” Again, Ahuja does not explain why those procedures should not have
been performed and how performing them led to McBride’s injuries. See Wright, 79 S.W.3d at
52.
Finally, the report also fails to explain what Saridena should have done to avoid
McBride’s injuries. See Palacios, 46 S.W.3d at 879.
For these reasons, we find that the report fails to make a good-faith effort to factually
explain with sufficient specificity how proximate cause will be proven. The report also failed to
provide a basis for the trial court to conclude that the claims had merit. As a result, the trial court
was within its discretion to determine that the report failed to link Ahuja’s conclusions to the
facts of the case, to grant Saridena’s objection to the report’s adequacy on causation, and to
dismiss the case. See Wright, 79 S.W.3d at 52. We, therefore, overrule this point of error.
V. Conclusion
We affirm the trial court’s order.
Scott E. Stevens
Justice
Date Submitted: October 14, 2020
Date Decided: May 14, 2021
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